COPAA files brief in 5th Circuit: Importance of the Attorney’s Fees Provision to the IDEA

COPAA filed an amicus brief on May 8, 2015 in the 5th Circuit case, D.G. v. New Caney ISD. COPAA members Constance Wannamaker and Colleen Elbe, Disability Rights Texas, represent the parents. At issue is the statute of limitations (SOL) for recovery of attorney’s fees in a case where the parent was the prevailing party. COPAA’s amicus brief discussed the importance of the attorney’s fees provision to the IDEA as well as the history of the Handicapped Children Protection Act of 1984 (HCPA). A “proper interpretation of [the IDEA] requires a consideration of the entire statutory scheme.” Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523 (2007). The IDEA “embodies a strong federal policy to provide an appropriate education” for every child with disabilities. The procedural protections include the parental right to recover attorney’s fees as a prevailing party. The legislative history of the HCPA also establishes that Congress believed it to be particularly important that fees for administrative hearings be recoverable. Congress enacted the precursor statute to IDEA to ensure that all children with disabilities are provided FAPE which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of children and their parents or guardians are protected. The IDEA contains no express statute of limitations for a claim for attorney’s fees under the IDEA. Because the choice of either a 90-day or 30-day statute of limitations would frustrate the statutory purpose of ensuring access to judicial proceedings for all children with disabilities, the district court erred in dismissing Appellants’ claim for attorney’s fees. Catherine Merino Reisman and Selene Almazan authored the brief for COPAA, Alice Nelson assisted in research and editing.

Comments...

I was pleased to see that the Children's Legal Rights Journal is an open access (free) publication. Bonnie's article, which, in my opinion is important to share because it represents reality for so many of us parents, is published at this site:
http://www.childrenslegalrightsjournal.com/childrenslegalrightsjournal/volume_35_issue_3?pg=35#pg35
Thank you for your ongoing efforts in advocating for the unique educational needs of our children.

Great brief, but I also refer to you the work of Prof. Debra Chopp, U. of Michigan, Debra Chopp, School Districts and Families Under the IDEA: Collaborative in Theory, Adversarial in Fact, 32 J. NAT’L ASS’N ADMIN. L. JUDICIARY 423, 450–54 (2012), which notes that special education hearings can cost thousands in legal fees, that school districts have law firms on retainer and that liability insurance is available to schools to cover special education claim defense costs. I investigated further in connection with an article I co-authored with Dr. Marilyn Bartlett titled The Strained Dynamic of the Least Restrictive Environment Concept in the IDEA and found that these policies remain available. Chopp also notes that parents are further hampered by the fact that attorneys’ fees are reimbursable to the prevailing party, but that expert witness fees are not. Chopp, supra at 451 n.120. My article will appear in the next issue of the Childrens' Legal Rights Journal.